TOPIC 14: Requirements for Public Office

Pimentel vs. Ermita, 472, SCRA 587

Due to the vacancies in the cabinet, then President Gloria Macapagal Arroyo appointed
secretaries in the different executive departments. Their appointment was in an acting capacity only.

Meanwhile, Senator Aquilino Pimentel and seven other senators filed a complaint against the
appointees and Executive Secretary Eduardo Ermita, on the ground that the President cannot make such
appointment without the consent of the Commission on Appointments; that, in accordance with Section
10, Chapter 2, Book IV of Executive Order No. 292, only the undersecretary of the respective
departments should be designated in an acting capacity and not anyone else.

On the contrary, then Executive Secretary Eduardo Ermita averred that the president is
empowered by Section 16, Article VII of the 1987 Constitution to issue appointments in an acting capacity
to department secretaries without the consent of the Commission on Appointments even while Congress
is in session. Further, EO 292 itself allows the president to issue temporary designation to an officer in the
civil service provided that the temporary designation shall not exceed one year.

During the pendency of said case, Congress adjourned and GMA issued ad interim appointments
re-appointing those previously appointed in acting capacity.

ISSUE:
Whether the appointments made by PGMA without the consent of the Commission of
Appointments and while the Congress is in session are constitutional.

RULING:
Yes, the essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time until the appointment of a permanent occupant to the
office.16 In case of vacancy in an office occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice could assume office.

Congress, through a law, cannot impose on the President the obligation to appoint automatically
the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a
position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office,
cannot impose on the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in session. Since a
department secretary is the alter ego of the President, the acting appointee to the office must necessarily
have the President’s confidence. Thus, by the very nature of the office of a department secretary, the
President must appoint in an acting capacity a person of her choice even while Congress is in session.
That person may or may not be the permanent appointee, but practical reasons may make it expedient
that the acting appointee will also be the permanent appointee.

The law expressly allows the President to make such acting appointment. Section 17, Chapter 5,
Title I, Book III of EO 292 states that "[t]he President may temporarily designate an officer already in the
government service or any other competent person to perform the functions of an office in the executive
branch." Thus, the President may even appoint in an acting capacity a person not yet in the government
service, as long as the President deems that person competent.

Petitioners assert that Section 17 does not apply to appointments vested in the President by the
Constitution, because it only applies to appointments vested in the President by law. Petitioners forget
that Congress is not the only source of law. "Law" refers to the Constitution, statutes or acts of Congress,
municipal ordinances, implementing rules issued pursuant to law, and judicial decisions. 17

Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to
abuse. Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided
in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent
abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on
Appointments.

Wherefore, the petition is denied.

NOTE: Ad Interim Appointments vs Appointments in an Acting Capacity

Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are
effective upon acceptance. But ad-interim appointments are extended only during a recess of
Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover
ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection;
acting appointments are not submitted to the Commission on Appointments. Acting appointments are a
way of temporarily filling important offices but, if abused, they can also be a way of circumventing
the need for confirmation by the Commission on Appointments.

Pimentel, Jr. vs Ermita, 472 SCRA 587

Posted by Pius Morados on November 7, 2011

(Public Officer, Difference Between Ad-Interim and Acting Appointments)

Facts: President Arroyo issued appointments to respondents as acting secretaries of their respective
departments without the consent of the Commission on Appointments, while Congress is in their regular
session.
Subsequently after the Congress had adjourned, President Arroyo issued ad interim appointments to
respondents as secretaries of the departments to which they were previously appointed in an acting
capacity.

Petitioners senators assailing the constitutionality of the appointments, assert that “while Congress is in
session, there can be no appointments, whether regular or acting, to a vacant position of an office
needing confirmation by the Commission on Appointments, without first having obtained its consent.

Respondent secretaries maintain that the President can issue appointments in an acting capacity to
department secretaries without the consent of the Commission on Appointments even while Congress is
in session.
EO 292, which devotes a chapter to the President’s power of appointment.  Sections 16 and 17, Chapter
5, Title I, Book III of EO 292 read:

SEC. 16.   Power of Appointment. — The President shall exercise the power to appoint such officials as
provided for in the Constitution and laws.
SEC. 17.  Power to Issue Temporary Designation.  — (1) The President may temporarily designate an
officer already in the government service or any other competent person to perform the functions of an
office in the executive branch, appointment to which is vested in him by law, when: (a) the officer regularly
appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or
(b) there exists a vacancy[.]

Issue: WON the President can issue appointments in an acting capacity to department secretaries while
Congress is in session.
Held: Yes. The essence of an appointment in an acting capacity is its temporary nature.  It is a stop-gap
measure intended to fill an office for a limited time until the appointment of a permanent occupant to the
office.  In case of vacancy in an office occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice could assume office.
The office of a department secretary may become vacant while Congress is in session.  Since a
department secretary is the alter ego of the President, the acting appointee to the office must necessarily
have the President’s confidence. Thus, by the very nature of the office of a department secretary, the
President must appoint in an acting capacity a person of her choice even while Congress is in session.
Ad interim appointments and acting appointments are both effective upon acceptance.  But ad-interim
appointments are extended only during a recess of Congress, whereas acting appointments may be
extended any time there is a vacancy.  Moreover ad-interim appointments are submitted to the
Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the
Commission on Appointments.  Acting appointments are a way of temporarily filling important offices but,
if abused, they can also be a way of circumventing the need for confirmation by the Commission on
Appointments.

The absence of abuse is readily apparent from President Arroyo’s issuance of ad interim appointments to
respondents immediately upon the recess of Congress, way before the lapse of one year.

 
Note: Can Congress impose the automatic appointment of the undersecretary? 
Congress, through a law, cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. 
The power to appoint is essentially executive in nature, and the legislature may not interfere with the
exercise of this executive power except in those instances when the Constitution expressly allows it to
interfere. Limitations on the executive power to appoint are construed strictly against the legislature. The
scope of the legislature’s interference in the executive’s power to appoint is limited to the power to
prescribe the qualifications to an appointive office.  Congress cannot appoint a person to an office in the
guise of prescribing qualifications to that office.  Neither may Congress impose on the President the duty
to appoint any particular person to an office.